News Release ~ 12/19/2011

Morton Case Shows Need for Discovery Reform

Washington, DC (December 19, 2011) – The release today of a report by lawyers for DNA exoneree Michael Morton, released this fall after serving nearly a quarter-century for a murder he did not commit, underscores the necessity of reforming the discovery process in America’s criminal justice system.

Morton, a former supermarket manager in Austin, Tex., was convicted of murdering his wife in 1986. His lawyers, Barry C. Scheck and Nina Morrison of the Innocence Project, John Wesley Raley of Houston, and Gerald Goldstein and Cynthia Hujar Orr of San Antonio, allege that the prosecutor in the case withheld evidence that pointed toward an unknown assailant, knowingly made false representations during Morton’s appeals, and improperly opposed the DNA test that finally exonerated their client. They are asking Judge Sid Harle to refer their report to a rare Court of Inquiry for possible ethics or criminal charges against the prosecutor, Ken Anderson, who is now a sitting state judge.

The report specifically recommends that the Texas legislature use model legislation drafted by the National Association of Criminal Defense Lawyers as a template for amending the Texas Code of Criminal Procedure, “to make sure that Texas’s ethical rules mandating disclosure of evidence that tends to negate guilt or mitigate punishment is enforced, as well as to enforce prosecutors’ affirmative obligations to search for exculpatory evidence and impeachment evidence in the files of police or other relevant government agencies.”

In 1963, the U.S. Supreme Court held in Brady v. Maryland, that prosecutors have a constitutional duty to turn over to the defendant all information favorable to his case. Recent Supreme Court cases, including one already argued this term, Smith v. Cain, indicate that many prosecutors violate that duty with virtual impunity. NACDL Immediate Past President Jim E. Lavine, of Houston, said when the NACDL materials were published last summer, “The time to put teeth into Brady obligations is long overdue.”

Specifically, Morton’s attorneys allege that Anderson had a duty under a direct order from the trial court to produce certain exculpatory material for the court to review, that is, police reports and notes from Sgt. Don Wood, the lead investigator in the case. The trial judge would have determined whether the reports would be turned over to Morton’s defense counsel.

Instead, Anderson provided the court with only a fraction of those documents and then proceeded to remove Sgt. Wood from the witness list just two hours before the trial. Anderson concealed from both the trial court and the court of appeals that he did not disclose Sgt. Wood’s exculpatory reports and notes.

Anderson fought Morton’s attempts to exonerate himself every step of the way, even opposing all of Mr. Morton’s post-conviction requests for DNA testing.

Barry Scheck, Gerald Goldstein and Cynthia Orr are past presidents of the National Association of Criminal Defense Lawyers.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.